July 2011

CIRCUIT CLERKS

Mississippi Code Annotated Sections 99-19-71 and-72 provides the only authority for circuit clerks to collect a filing fee for expungements. (French, 7/1/2011)(#042)(OP-11-00240)

COUNTY ATTORNEY

From the facts presented, the County may only pay the debt represented by the third invoice, incurred in 2010, and recently presented to the County in 2011, in accordance with the procedures set forth in Mississippi Code Annotated Sections 31-7-301, 31-7-305, 31-7-309, 31-7-311, and 31-7-313. The 2006 and 2008 debts would be barred by the three (3) year general statute of limitation found in Mississippi Code Annotated Section 15-1-49. (Hamer, 7/22/2011)(#050)(OP-11-00261)

CRIMINAL LAWS

A private individual may file a criminal affidavit alleging a violation of the game and fish laws. (Ready, 7/22/2011)(#057)(OP-11-00265) If within eighteen (18) months of the date of the final forfeiture the defendant appears for court, is arrested or surrendered to the court, or if the defendant is found to be incarcerated in another jurisdiction and a hold order placed on the defendant, then the amount of bail, less reasonable extradition cost, excluding attorney fees, shall be refunded by the court upon application by the surety. (Henry, 7/29/2011)(#057)(OP-11-00285) Simple assault on a youth services counselor is a misdemeanor pursuant to Section 97-3-7(1). (Gore, 7/29/2011)(#057)(OP-11-00291)

DISTRICT ATTORNEYS

One of the conditions to determine when a pretrial intervention program is appropriate for a person is whether the offender has no significant history of prior delinquency or criminal history which is a fact question to be answered on a case by case basis. (Smith, 7/15/2011)(#059)(OP-11-00272)

E-911

The only method for funding a 911 system is the telephone surcharge provided for in Section 19-5-313 and District cannot demand additional funds from a municipality for participation in the 911 system. (Adams, 7/21/2011)(#062C)(OP-11-00213) Traffic stops, driver's license checks, vehicle registration checks, warrant checks, and similar matters which are not generated by a 911 call should not be funded by the emergency telephone surcharge intended to fund the emergency communications district. (Carnathan, 7/21/2011)(#062C)(OP-11-00224) Hinds County E-911 Council expenditures on personnel and equipment from "general E-911 funds" must be approved by the Hinds County Board of Supervisors. (Scanlon, 7/8/2011)(#062C)(OP-11-00252)

ECONOMIC DEVELOPMENT DISTRICTS

The Simpson County Economic Development District has the authority to amend its covenants to remove the "industrial/warehouse use" restrictions on property already sold by the District so that the owners of these properties may develop these properties for commercial of retail use. (Welch, 7/1/2011)(#266C)(OP-11-00246)

HOSPITALS-COMMUNITY

The Board of Trustees of OCH Regional Medical Center is not authorized to compensate for the losses alleged by a citizen in the subdivision adjacent to hospital property as a result of construction at the hospital, nor is the hospital authorized to waive or reduce the patient's pending hospital bill. (Zimmerman, 7/8/2011)(#092)(OP-11-00232) Mississippi Code Section 43-11-13 would not require fingerprint-based criminal history record checks on the employees of an ambulance service provider which merely provides transport services pursuant to contracts with the hospital, where those employees would not be called upon nor allowed by contract to provide medical care to the persons being transported. (Evan Dillard, 7/8/2011)(#092)(OP-11-00250)

INTERLOCAL AGREEMENTS

Interlocal Cooperation Agreement between the City of Pass Christian and Hancock County for the disposal of dredge material is approved. (Jones, 7/1/2011)(#277)(OP-11-00268) Approval of 2011 Interlocal Agreement between Wayne County, and Clarke County and the Sheriff of each county, the City of Quitman and the Chief of Police of Quitman and the City of Waynesboro and the Chief of Police of Waynesboro and the Chief of Police of Waynesboro establishing the South Mississippi Narcotics Task Force. (Pursell, 7/12/2011)(#277)(OP-11-00282) Approval of Interlocal Agreement between Adams County, the Sheriff of Adams County, Natchez and the Chief of Police of Natchez establishing the Metro Narcotics Unit. (Lindsey, 7/19/2011)(#277)(OP-11-00283) The proposed Interlocal Agreement between Clarke County, Mississippi and the Town of Stonewall, Mississippi and the Clarke County Tax Collector for the Collection of City Ad Valorem Taxes by the County is hereby approved. (Snowden, 7/20/2011)(#277)(OP-11-00284) Approval of Interlocal Agreement between Pike, Walthall and Lincoln Counties; the Sheriffs of Pike, Walthall and Lincoln Counties; the Cities of McComb and Brookhaven; and the Chiefs of the McComb and Brookhaven Police Departments establishing the Southwest Mississippi Inter-Jurisdictional Narcotics Enforcement Unit. (Dye, 7/21/2011)(#277)(OP-11-00292) Approval of Interlocal Agreement between Rankin County and Town of Pelahatchie concerning mosquito control. (Slay, 7/1/2011)(#277)(OP-11-00248)

JUVENILE COURTS (YOUTH COURT)

CASA volunteers may be authorized by the court to review the records contained in the county offices of the Department of Human Services. (Alfonso, 7/8/2011)(#101)(OP-11-00241)

LEGISLATIVE

Mississippi Code Section 73-34-9(1) (i) gives the board and the commission power to adopt rules to determine the number of years for which registration is valid. (Praytor, 7/1/2011)(#104)(OP-11-00237)

MUNICIPALITIES

The Board of Supervisors is authorized to make a factual determination as to the necessity of repairing the road and to expend funds from the solid waste fund to repair a county road damaged as a result of closing a landfill. (Webb, 7/9/2011)(#141)(OP-11-00255) The mayor may cast a vote on his request for a travel advance for official travel when the votes of the aldermen result in a tie. (Martin, 7/8/2011)(#141)(OP-11-00212) We do not opine with regard to the interpretation of the City's bond resolution. The interpretation of the municipality's bond resolution is best left to the Mayor and Council in consultation with bond counsel. Replacing utility poles and lights, which illuminate a street and sidewalk, as defined in Section 63-3-125, constitutes improving a street or sidewalk for purposes of Section 21-33-301, the municipal bond statute. (Turnage, 7/1/2011)(#141)(OP-11-00243) A quorum for the conduct of business for the City of Clarksdale appears to be three inclusive of the mayor. (Moton, 7/8/2011)(#149)(OP-11-00260) A municipality may lease municipal property to a company for the purpose of constructing a telecommunications tower. In doing so, the governing authorities of the municipality may not bind their successors in office to a contract which takes away the rights and powers conferred by law, unless there is express statutory authority to do so. (Barton, 7/15/2011)(#142)(OP-11-00258) Proposed publication of notice of special election on whether to establish a resort area satisfies statutory requirements. (Bobo, 7/1/2011)(#142)(OP-11-00259) It is permissible under state law to publicize the described dinner meeting which has the purpose of forming an economic development foundation, and for a city alderman to mention his involvement in such a meeting. (Carrubba, 7/22/2011)(#142)(OP-11-00274) Leave, whether personal, medical or compensatory, may not be used by an employee as a substitute for suspension without pay. A municipality may adopt an ordinance which seeks to regulate certain types of businesses, but may not adopt an ordinance that would prohibit them. In order for an alderman to fully participate in a municipal meeting by telephone, the statutory provisions of Mississippi Code Annotated Section 25-41-5 must be met. (Smith, 7/29/2011)(#142)(OP-11-00277) Municipal governing authorities have the authority to abate nuisances by ordinance or by bringing an action in chancery court. In an action to abate a nuisance in chancery court, proof that an agricultural operation has existed for one (1) year or more is an absolute defense to such action. (Denton, 7/22/2011)(#142)(OP-11-00281) A municipal ordinance may assesses a criminal fine for repeated false alarms of homes and businesses. Any actual assessment or levy of the criminal penalty would be imposed by the municipal court, upon a finding of a violation of the municipal ordinance. An appeal from a resulting conviction of violation of a municipal ordinance is filed in the county court, if there is one, or if not, in the circuit court of the county in which the municipality is located. (Scanlon, 7/1/2011)(#142)(OP-11-00234) A municipality may adopt an ordinance that creates a recording fee for the sale or transfer of a cemetery plot located within a municipal cemetery. (Fulton, 7/1/2011)(#142)(OP-11-00236) It is apparent from the language in Mississippi Code Annotated Section 31-7-13(b) that the Legislature intended for written competitive bids to be obtained prior to the acceptance and award of the purchase of the equipment. The procurement of a second bid, after the fact, does not cure the faulty procurement process employed by a municipality. (Bryant, 7/1/2011)(#142)(OP-11-00238)

OPEN/MEETINGS/OPEN RECORDS

The Board of Commissioners of an Emergency Communications District in a county is subject to the open meetings laws of the State of Mississippi. (Shepard, 7/8/2011)(#272)(OP-11-00264)

OTHER STATE AGENCIES, BOARDS & COMMISSIONS

The MS Board of Veterinary Medicine is authorized, pursuant to Miss. Code Ann. Section 73-39-57, to regulate the activities of sale barn employees to the extent those activities relate to the standards of practice and professional conduct for the practice of veterinary medicine. (McAuley, 7/15/2011)(#218C)(OP-11-00225)

SCHOOLS

No authority is given under the Education Employment Procedures Law granting a school district the power to provide notice to an employee that the due process hearing will take place five (5) days from the date of notice. The school district does not have the authority to extend the hearing past thirty (30) days unless otherwise agreed. (Taylor, 7/1/2011)(#179)(OP-11-00206) A local secondary school district is not a necessary party in an agreement to build, construct, or form a regional education center. If the local secondary school district is not a party to the agreement, the agreement still has to be approved by the State Board of Education. The only limitation placed on the amount of general fund monies used is the amount of funds available for use from the City or the County. The local secondary school district is a necessary party for the operation of the regional education center. (Dye, 7/15/2011)(#187)(OP-11-00215)

SEPARATION OF POWERS

The positions of police sergeant and constable are both in the executive branch of government. The position of police investigator is in the executive branch. The position of justice court judge is in the judicial branch. The position of public works director is in the executive branch. The position of county supervisor is in the judicial branch. (Yarborough, 7/20/2011)(#271)(OP-11-00263) A person cannot serve as Mayor and a County Supervisor simultaneously, because it violates the separation of powers doctrine. (Shepard, 7/1/2011)(#271)(OP-11-00242)

SUPERVISORS

For a county to sell surplus property and include a buy back provision for the same property sold would be inconsistent with such an adjudication that the same is surplus. (Palmer, 7/29/2011)(#220)(OP-11-00256) There is no authority in Miss. Code Ann. Section 17-5-15 (1972) or in Chapter 7 of Title 65 for a county to provide equipment and operators to a state agency to perform paving work on another state agency's property. However, Section 31-7-13 (m) (vi) authorizes certain intergovernmental transfers. (Coleman, 7/29/2011)(#220)(OP-11-00278) The Tunica County Board of Supervisors, pursuant to Mississippi Local and Private Laws of 2007, Chapter 934, can provide funds to the Tunica County Economic Development Foundation, Inc., who in turn, may acquire land and transfer the same to a company locating within the county without violating Miss. Const. Art. 4 Section 95. (Dulaney, 7/15/2011)(#220)(OP-11-00239) The DeSoto County Board of Supervisors is deemed to have "bought" machinery or equipment upon delivery and acceptance of the same. (Nowak, 7/8/2011)(#224)(OP-11-00186)

TAXES

Aircraft registration may not be refunded to a taxpayer from the tax collector. (Beech, 7/15/2011)(#237)(OP-11-00228) Municipal governing authorities may declare a municipal tax sale void and order the conduct of a new sale. (Maxey, 7/8/2011)(#251)(OP-11-00262) Pursuant to 27-25-705, Hinds County is authorized to use severance tax funds to relocate an existing gas line as part of improvement of a road and bridge, since the statute authorizes the funds to be deposited into county maintenance and bond interest funds, to be used accordingly. (Martin, 7/8/2011)(#257)(OP-11-00204)